What does ‘without prejudice’ mean during divorce?

If you are in the midst of a divorce, you may have encountered this confusing-seeming phrase in correspondence from your estranged partner’s solicitor. But what does it actually mean?

The term is used in the context of negotiations between the parties involved in a legal case – and of course that includes contested divorce settlements. In any such case it is usually in the interests of both parties to reach an agreement and settle the case out of court: this minimises acrimony and avoids the expense of courtroom proceedings. It is routine for negotiations to continue throughout a case: sometimes out-of-court agreements are reached on the very day of a scheduled hearing.

Confidential discussions

But reaching an agreement isn’t always straightforward. Each party has their own priorities and interests to protect: this goes for contested divorce cases as much as for any other legal dispute. Both sides must be able to fully engage with the other, make offers, consider concessions and get down to the proverbial brass tacks. But doing so would be considerably hindered if the details of these discussions could affect the strength of each party’s official position in court: the negotiations might fail, after all. And this is where the term ‘without prejudice’ comes in: it means that these out-of-court discussions between the parties, held with a view to reaching a settlement, will be strictly confidential. They cannot be raised in court or discussed with any other party.

During without prejudice discussions neither of the participants concedes any aspect of their case or agrees to surrender any rights they may claim or arguments they might make in court.

Why negotiate without prejudice?

Quite simply, because doing so will make it more likely that that you will reach an agreement with your estranged spouse which serves both your interests – at least as far as that is possible in the circumstances. Court cases are inherently unpredictable – you might think you have a strong case, but will the judge agree? You cannot be sure. Staying out of the courtroom also cuts costs and can help reduce rancour between you and your estranged or former spouse: this can especially important if you have children and therefore need to retain as civil a relationship as possible with your ex for their sake.